CARL SILVERMAN
INTEL CORPORATION
MR. SILVERMAN: I thank you. Good afternoon. My name is Carl
Silverman, Chief Counsel, Intellectual Property for Intel Cor-
poration. We understand that the Patent and Trademark Office is
interested in obtaining public input on issues associated with
the patenting of software_related inventions, and we're pleased
that the Patent and Trademark Office invited us here today to
briefly testify.
Software technology has become an integral part of virtually all
of U.S. industry, as innovators strive to develop new and im-
proved products in today's competitive, worldwide marxlace. Now,
this technology includes pure software, and software which is
combined with hardware, so for example, Intel Corporation, like
other successful high_technology companies, invests the efforts
of its engineers and large sums of money, the shareholders' mo-
ney, to develop software_related technology. In 1993 alone, In-
tel Corporation invested nearly one billion dollars in research
and development, including a substantial amount in
software_related technology. We also, we, Intel Corporation,
also invested nearly two billion dollars in capital to build fac-
tories so that we can build these advanced products.
These advanced products include products such as our Pentium pro-
cessor. This is a microprocessor with more than three million
transistors on a single chip. This microprocessor product in-
cludes software technology in the form of microcode and other
computer programs.
Now, to protect and encourage this kind of vast U.S. investment,
and I'm referring to both the technical as well as the
financ|aspects, and, to promote the development of new and im-
proved products, we at Intel believe that software_related tech-
nology should continue to be afforded the opportunity to obtain
patent protection.
The patent system has consistently provided an incentive to ex-
pend the kind of technical and financial efforts previously tes-
tified to to develop new technology, including software_related
technology. In the United States the Patent and Trademark Office
carefully examines every patent application against prior art to
insure that only the novel and nonobvious inventions obtain pa-
tent protection. Software_related technology is no different.
We support the current statutory law concerning patents as well
as its interpretation by the courts as relating to
software_related inventions. We are currently aware of no alter-
native to the patenting of software_related inventions that will
better_serve our industry than the current patent laws.
Further, we believe it would be a mistake to treat the patenting
of sare_related inventions differently than the patenting of oth-
er utility inventions. In this regard, Patent and Trademark Of-
fice and the courts should be left free to develop the extent of
patent protection for software_related inventions and its enfor-
ceability on a case_by_case basis until such time as it is ap-
parent that the courts are not up to the task. This time is not
at hand, rather, the courts for the most part are both interested
and concerned about protecting innovative technologies such as
software_related inventions.
Now, this is not to say that the current system for patenting
software_related inventions is not without opportunity for im-
provement. For example: We understand that the Patent and Trade-
mark Office is working to improve its library of software prior
art so as to improve its ability to examine patent applications
in this area. We support this effort. We urge the Patent and
Trademark Office to increase its capability to examine
software_related patent applications by taking whatesteps neces-
sary to establish the best prior art software library and to in-
crease and_or redeploy the number of patent examiners who are
knowledgeable in this crucial area.
On behalf of Intel Corporation we thank you for providing us with
the opportunity to present our views on this subject, and we are
delighted that the Patent and Trademark Office has encouraged
this free flow of ideas so that we as a country can do the right
thing here.
Thank you.
COMMISSIONER LEHMAN: Thank you very much, Mr. Silverman.
What's your view on the idea of prepublication that has been men-
tioned several times this morning here, that that would be one
way of making certain that we wouldn't overlook some priority
that we might already have missed.
MR. SILVERMAN: I apologize, Mr. Commissioner, for not being here
this morning; I know generally the subject of publication, and
oftentimes patent applications end up being published anyway as
they're filed in non_U.S. jurisdictions, and I think that is
perhaps a vehicle whichd simplify some of the issues that are in-
volved here. So I think we're open on that one.
COMMISSIONER LEHMAN: So you don't find that inherently offensive
at Intel.
MR. SILVERMAN: No, I don't.
COMMISSIONER LEHMAN: One other question, too, and that is, you
know, I remember the last time that I was in San Jose actually
was sixteen years ago, and we were at the other end of downtown
here at the old Santa Clara County Courthouse, and we had the
first set of hearings. At that time I was Counsel of the House
Judiciary Committee, and we had our first set of hearings that
led ultimately to the legislation that became the Semiconductor
Chip Protection Act of 1984, and Intel was a primary component of
that. You were having problems with unauthorized reproduction of
your semiconductor chips way back then, and ultimately Congress
responded by creating a new form of intellectual property protec-
tion, and I'm wondering if you have any thoughts as to how that
system is working and is the existing patent, copyrighd mass
works protection regime adequate, or in your particular area do
you feel a need for either a strengthening of the mass works
legislation or some alternative to that?
MR. SILVERMAN: The Mask Works Act, I think, was very necessary
at the time in which it was created, and I think it's been suc-
cessful with regard to those who would copy other person's or
company's products. I think it's been effective there. I think
these days, however, it forms a piece of the overall intellectual
property protection available in this country. I think it made a
lot of sense to do that then. I don't think it makes any sense
to do a similar type of protection mechanism for software_related
inventions.
COMMISSIONER LEHMAN: Basically you feel that you have an exist-
ing intellectual property regime with these three forms of pro-
tections that meets your needs, and it's really a question of
tightening up on it, and I know you have strong international
concerns, but it's really a question of enforcement and tighten-
ing uhere's no really fundamental problem with it.
MR. SILVERMAN: That's correct.
COMMISSIONER LEHMAN: Okay. Thank you very much.
Next I'd like to call Kaye Caldwell, President of the Software
Entrepreneurs Forum. Maybe you can tell us a little bit about
what your forum is, too. It seems to me you were at the Bree
conferences before, weren't you?